The case went to trial and, in this opinion, the Appellate
Division is ruling on

the State's interlocutory appeal from
the grant of defendant Gerald Brown's in limine motion requiring the State to
produce an expert to explain internet service provider and cell phone records
it intends to introduce at defendant's trial to establish that defendant
uploaded a video of his former girlfriend in a state of undress.

State v. Brown, supra.

Before we get to that issue, I need to outline how and why
the prosecution arose. According to the prosecution, Brown was indicted for

surreptitiously videotaping the victim,
his former girlfriend D.W., as she prepared to take a shower and uploading that
video to a Twitter account for dissemination to others following their
breakup. The victim discovered the crime on January 27, 2011, when she got
several messages from a Twitter subscriber (user) sent to her Twitter account.

The first such message was in the form
of a tweet stating, `remember the COP that took u 2 the HOOKAH bar n da summer?
He said good looking out 4 da happy ending HOOKer!!!’ Within minutes, the
victim received another tweet from the same user, `stop looking 4 all these
dudes 2 be ur daddy. . . . they just wanna nut all n dat fat azz . . .DatS
ALL!!’ Several minutes later, that user tweeted to someone else, `[t]his TRICK
[D.W.] is a MAJOR WHORE n the tri state area. . . .’

Over the next several minutes, D.W.
received several more tweets from the same user that insinuated that she was a
prostitute.

At 9:06 a.m., D.W. received a tweet
from the user, which was also sent to four other Twitter subscribers. The tweet
provided an embedded link to a video hosted by TwitVid.com, a service that
provides a means for Twitter users to share videos.

The tweet also contained the symbol
`<—‘ pointing to D.W.'s username, implying that the video was with reference
to her. Upon viewing the video, D.W. recognized herself and her bathroom and
the male voice off camera as belonging to defendant. D.W. was not aware that
defendant had videotaped her and did not know such a video existed until seeing
it on Twitter.

State v. Brown, supra.

That triggered an investigation:

After obtaining [Brown’s] cell phone
number from the victim, Detective Bolan of the Cyber Crimes Unit in the Essex
County Prosecutor's Office obtained a communications data warrant (CDW) for
Twitter account information relating to the user.

Twitter responded that the account was
created on January 26, 2011, at 7:10 p.m. from a certain IP address. Using
DomainTools, a publicly available directory of IP addresses, Bolan found that
the IP address was registered to Research in Motion (RIM) Technologies, now
known as Blackberry.

Bolan sent a subpoena to Blackberry
requesting subscriber information for IP address 74.82.68.16 on January 27,
2011, for an identified one hour and forty-minute period. Blackberry
responded by requesting the user's International Mobile Equipment Identity
(IMEI) or International Mobile Subscriber Identity (IMSI) numbers. Bolan
obtained the information by transmitting a grand jury subpoena to T–Mobile,
Brown's cellular service provider, which provided the ISMI number to Brown's
phone.

Using the IMSI number provided by
T–Mobile, Blackberry responded to the subpoena by advising that on January 27,
2011, a Blackberry device at the IP address 74.82.68.16 provided by Twitter,
downloaded the TwitVid application (app) from Blackberry App World. Blackberry
also responded by identifying an email address associated with the account.

Using the information received from
Blackberry, Detective Bolan served a subpoena on Microsoft, operator of the
msn.com domain, requesting subscriber information on that email address. The
response from Microsoft revealed that the account belonged to a `Gerald Brown.’

issue before the Law Division was
whether the State needed an expert to explain that document trail to the jury. [Brown]
asserted that the information collected in response to the CDW and subpoenas
pertained to internet-working protocols and applications that were extremely
technical and outside the ken of the average juror, thus requiring an expert to
explain the links.

The State maintained that expert
opinion was unnecessary as it did not intend to have Bolan provide an opinion
conclusively linking [Brown] to the Twitter account or the video. Instead,
Bolan would testify to the steps she took in conducting her investigation and
the business records obtained in response to the CDW and subpoenas. The State
maintained that Bolan would do no more than provide the circumstantial links
from which the jury could draw a conclusion.

State v. Brown, supra.

The opinion then notes that the trial judge “did not conduct
a Rule 104 hearing or hear oral argument on the motion”, which
was essentially the basis of Brown’s argument, at trial and on appeal. State v. Brown, supra. That is
relevant because Rule 104(a) of the New Jersey Rules of Evidence states
that

[w]hen the qualification of a person to
be a witness, or the admissibility of evidence, or the existence of a privilege
is subject to a condition, and the fulfillment of the condition is in issue,
that issue is to be determined by the judge. In making that determination the
judge shall not apply the rules of evidence except for Rule 403 or a valid
claim of privilege. The judge may hear and determine such matters out of the
presence or hearing of the jury.

If you are interested, the blog post you can find here
explains more about Rule 104 hearings.

Instead of holding a Rule 104 hearing, the trial judge
reviewed the briefs submitted byboth
sides and then issued a written opinion, “relying predominantly on out-of-state
cases”, in which he explained that

[e]xtensive and diligent research
performed by both parties, and supplemented by the Court's own research, has
failed to uncover any cases from inside or outside this jurisdiction that are
directly on point. Nonetheless, the Court finds U.S. v. Ganier, 468 F.3d 920 (U.S. Court of Appeals for the 6th Circuit 2006) somewhat instructive.

In Ganier, the court
determined that an expert was required to testify about his use of forensic
software to determine what searches were run on three different computers. Id. at
923. The Court reasoned that `[s]oftware programs such as Microsoft Word and
Outlook may be as commonly used as home medical thermometers, but the forensic
tests Drueck ran are more akin to specialized medical tests run by physicians.’ Id. at
926.

This Court acknowledges that the fast
pace of technological advancements lessens the persuasiveness of Ganier which
was decided in 2006. Technology that was new and evolving in 2006 may be
commonplace in 2013. Nonetheless, this Court finds that the issues involved in
this case (IP addresses and advanced networking protocols used by mobile device
applications, RIM networks, and T–Mobile) are more akin to specialized medical
tests and the use of forensic software to find information about computer
searches, and less akin to the output of popular software programs such as
Microsoft Word and Outlook. Id. at 926.

After poring over these records, and
aided by both parties' written submissions, this Court has experienced
significant difficulty and confusion in attempting to discern exactly how the records
link the Defendant to the particular video in question. The Court finds
that the concepts required to establish this inferential link are `so esoteric
that jurors of common judgment and experience cannot form a valid judgment’
about whether or not [Brown] uploaded this video. Butler v. Acme
Markets, Inc., [89 N.J. 270,] 283 (New JerseySupreme Court 1982)].

The Court has broad discretion to
determine whether or not this subject-matter is beyond the ken of the average
juror. The fact that this Court, with the luxury of time and written
explanations, struggled mightily to understand the technical subject-matter
demonstrates the complexity of these issues. Therefore, an expert witness is
required.

State v. Brown, supra.

The fact that the trial judge relied “primarily” on cases
from other states was at least potentially problematic because, if a statute
does not explicitly apply to an issue, U.S. courts, both state and federal,
rely on precedent as authority.And as
this short article from the Georgetown University Law Center notes, prior
decisions only act as binding precedent on a trial court judge if they were
issued by a higher court in that state.The article explains that and has a chart that outlines the scope of
precedential decisions.

Basically, here, the Appellate Division seems hesitant to
defer to the trial judge’s analysis, at least in part, because it was based
mostly on decisions issued by courts the ruling of which are not binding on a
New Jersey trial judge, or on a New Jersey appellate court.

In the judge’s (potential) defense, judges usually rely on
precedents from other states when they cannot find relevant precedential
decisions from higher courts in their own states.I do not, of course, know if that was the
case here.

Perhaps for that reason, perhaps because of the potentially
novel issue raised by this case, the Appellate Division chose not to weigh in
on it, at least not at this stage.Instead, it concluded

that we lack the record to definitively
resolve this issue. Accordingly, we remand for a Rule 104 hearing to determine the nature and extent of the
evidence the State seeks to introduce as part of Bolan's proffered testimony
and whether she is qualified to give such evidence. See State v. McLean, 205 N.J. 438
(New Jersey Supreme Court 2011) (addressing lay and expert opinion in the
context of drug prosecution); State v. Green, 417 N.J. Super. 190 (Appellate
Division 2010) (holding that the court erred in concluding that defendant
was not qualified to testify as an expert without conducting a hearing
under New Jersey Rule of Evidence
104 to ascertain the factual testimony that would be offered and the
opinions that would be expressed).

Reversed and remanded for further
proceedings consistent with this opinion. We do not retain jurisdiction.

State v. Brown, supra.

While it is, at least for those of us who are interested in
these issues, disappointing that the Appellate Division chose not to address
this issue at this stage in the proceedings, it may well be the wisest
choice.It is, after all, reasonably certain
that the trial judge will conduct the Rule 104 issue and draft a new decision,
which will no doubt make its way back to the Appellate Division.